BRADY AND 1054.1

BRADY – The Rule of Fairness in Criminal Trials

RECENT ARTICLE ON BRADY PUBLISHED IN THE CONTRA COSTA COUNTY BAR ASSOCIATION LAW JOURNAL [Click below for entire Brady Article]

CALIFORNIA’s 1054.1 Discovery Statute vs. Federal “Due Process” Brady

Every state is free under the U.S. Constitution to establish whatever discovery rules it wants.

In civil lawsuits over money, lawyers routinely propound written questions and take depositions of witnesses before trial. In criminal cases where life and liberty are at stake, this is rarely allowed (Florida is one of the few states with criminal case depositions). New York does not even require the State to give defense counsel a witness list. California has adopted Penal Code sections 1054 et seq. and by its very terms, Penal Code section 1054 (e) states that “…no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.

Fortunately a long line of cases starting with Brady v. Maryland require that the prosecutors provided “exculpatory” evidence to the defense. However, this is limited to exculpatory evidence that is “material” and the word “material” is a weasel word that places a great deal of discretion in the hands of the prosecutor regarding what gets turned over. This article focuses on the California statute (Penal Code section 1054.1(e)) which requires the turn over of exculpatory evidence.

Many lawyers are not aware of the fact that this requirement applies to ALL exculpatory evidence even if it is not material.

This makes the state provision far broader than the federal provision.

The showing that defendants must make to establish a violation of the prosecution’s duty to disclose exculpatory evidence differs from the showing necessary merely to receive the evidence. For example, Penal Code section 1054.1, subdivision (e), requires the prosecution to disclose “[a]ny exculpatory evidence,” not just material exculpatory evidence. To prevail on a claim the prosecution violated this duty, defendants challenging a conviction would have to show materiality, but they do not have to make that showing just to be entitled to receive the evidence before trial. See: Barnett v. Superior Court (2010) 50 Cal.4th 890

The broadest application of Brady and 1054.1(e) is in the area of impeachment. Impeachment evidence is subject to the same Brady rules of disclosure as any other kind of evidence favorable to the defendant.
We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, (1985) 473 U.S. 667, 676,(1985) .

Here are some areas of impeachment and the cases which establish their exculpatory value.

Faulty Investigation
The defense has the right to present a defense that casts doubt due to a poor or faulty investigation. Bowen v. Maynard (1986) 799 F2d 593, 613 and Brady material that assists in establishing this point must be produced. See: United States v. Howell (2000) 231 F.3d 615, 625 [holding that even information that is inculpatory is Brady material if it casts doubt on the quality of the investigation.]

Expert Cross Examination Information

Wide latitude should be allowed in cross-examining experts on their qualifications and the reasons given for the opinions expressed. Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 796
“Once an expert offers his opinion . he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of the factual witness. The expert . may be subjected to the most rigid cross-examination concerning his qualifications, and his opinion and its sources.”
(Grimshaw at 796)

Impeachment by Contradiction

During a witness’s testimony, he or she will normally state that certain facts occurred. Proof that even one of them actually did not occur is indicative of a general lack of credibility. (Kennemur v. State of California, 133 Cal. App. 3d 907, 923, (5th Dist. 1982); see generally Evidence Code § 780(i).)

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